Apple, taxes, and duty to shareholders

Apple is taking a bit of a beating in the press this week as Congressional investigators have revealed that Apple has avoided billions in taxes through completely legal—yet unattractive—means. (The New York Times notes that other companies, like Google, Amazon, and Starbucks have used similar tax avoidance methods.)

While the thought of a company avoiding taxes like this offends me, I’m going to come to Apple’s defense here. The reason is very simple: Apple has no other choice. Corporations are legally obligated to maximize returns for shareholders. If Apple’s leadership didn’t take advantage of these tax loopholes, shareholders would have the legal right to force the company to do it.

The fault here is not Apple’s. The fault lies in the tax code that contains these loopholes and in antiquated corporation law that doesn’t permit Apple or any other corporation to be good corporate citizens.

Lawyer jokes

Lately, I’ve been thinking about lawyer jokes. Over the years, I’ve heard some funny ones, others not so funny. Some of the best ones have come from my fellow lawyers.

One time, a person I had just met chose to “entertain” me with his favorite lawyer joke. It wasn’t very funny, and it was rather mean-spirited as well. I ignored it and went on with the conversation. In a way, I wish I’d had the guts to say to him, “So, do you tell ‘black guy’ jokes to African-Americans you’ve just met?”

As I’ve put more years of practicing law under my belt, I’ve found that I’m less fond of lawyer jokes. In fact, I find myself putting them into the same category of humor that makes fun of stereotypes: ethnic jokes, gay/lesbian jokes, etc. The key similarity to all of this type of humor is that it uses unfair assumptions about the person or profession that is the target of the joke.

The next time you’re tempted to tell a joke, think carefully about it. There are plenty of funny jokes that do not denigrate people or professions that you can use. There’s no need to tell lawyer jokes, doctor jokes, Italian jokes, or anything like that. George Carlin made a brilliant career out of telling jokes about language and other oddities.

And the next time you hear someone telling a joke like that, have a little gumption and let the joke-teller know that you don’t approve.

DuckDuckGo, your private search engine

My internet searches are pretty uninteresting by just about any standard. So, in a sense, I shouldn’t care that search engines like Google, Yahoo! and Bing track my search queries. Similarly, many of the letters that I send are pretty innocuous, so I shouldn’t care if the envelope doesn’t get sealed before it goes out. (I’m not talking about client or client-related correspondence in this instance. I’m talking about cover letters that accompany court filings or personal correspondence.)

But I do care if the envelope doesn’t get sealed. It’s the principle of the thing. I prefer privacy in various contexts: in the home, in public restrooms, in the car, in my luggage, etc.

The leading search engines have done a pretty good job of keeping us from considering the fact that our search queries are tracked and tied to us. The only ones who really talk about it are the privacy-obsessed. Those of us who are slightly less than privacy-obsessed read what the privacy-obsessed are saying, think about it, and then get distracted by a ringing phone or an email that has just arrived.

But the principle of the private search makes sense to me. I’d be bothered if I had to write down in a log at the public library my name and what my search query is before using the library’s card catalog (which is now, of course, online). I don’t care if someone finds out I’m looking for books on astronomy or architecture. But it’s the principle: what people are looking for in a public library is nobody’s business.

After this year’s ABA TechShow, I heard about a new search engine, DuckDuckGo. It does not track your search history, and it does a remarkable job of finding useful information. Not only does DuckDuckGo have its own web crawler and search algorithm, but it queries Google, Yahoo!, Bing, and Wikipedia as well. Those results turn up in my search results as well.

I’ve been using DuckDuckGo for a day now, and I’m sold. I’ve installed the Safari extension that makes it my default search engine, and I’m loving it. Sure, the fact that I just searched for information on “Duck Duck Goose” is not embarrassing, but neither is it anyone’s business—not even Google’s.

Finally, a way for lawyers to safely use Dropbox

Dropbox is a great tool, but many lawyers hold a concern that its security against disclosure of client information is not strong enough. Although some feel that the security is good enough to meet our ethical obligations, others feel it isn’t.

Fortunately, we have a solution available to us. It’s free, and it comes from the good people who created the .zip format for compressing files.

The service is called Viivo. It works very simply. You sign up for a free account, link your Dropbox account, and download the software to your computer. When you install the software on your system, it creates a Viivo folder inside your Dropbox folder. Whatever you put in that Viivo folder is encrypted and synced with your Dropbox files. The encryption is AES-256, so it’s quite strong. If you want to share your particular file with another person, Viivo uses a strong public/private key system.

I’ve been using Viivo for a few days now, and it’s seamless and straightforward. You can’t beat the price, and it offers great security for your own Dropbox files or those you want to share with clients or friends.

Viivo works on Windows, Mac, Android, iOS, and maybe another platform or to that I can’t think of. Check it out.

Three things I learned at ABA TECHSHOW 2013

Now that I’ve had the time to digest the many things I saw and heard at TECHSHOW earlier this month, here’s my list of take-aways.

1. In jurisdictions with electronic filing systems that use PDFs, lawyers should submit interactive briefs to the court. Hyperlinking to cases or embedding videos can present the client’s case in an effective manner. Ernie Svenson and David Maxfield did a great job showing ways we can make PDF briefs more persuasive.
   
2. You can use the Security preferences pane in Mac OS X to display a message when the lock screen appears, such as “If found, please contact…” David Sparks and Larry Staton offered plenty of other good tips in their Mac Power Users seminar. I consider myself to be pretty Mac-savvy, but I picked up quite a few good ideas.
3. There are good uses for technology in mediation, primarily in the opening statements. Lawyers who blow off the opening statement in mediation are missing a big opportunity. (In my local bar, lawyers seem to eschew the opening statements in a desire to “get it settled quickly.” I’m beginning to doubt that skipping the opening session is at all helpful.) Kudos to Marc Matheney and Randy Juip for an enlightening presentation.

Why do so many lawyers (and judges) assume their readers are idiots?

This afternoon I was reading a federal court filing in a case involving a number of parties. The lawyers who drafted the filing engaged in a practice that ought to be, well, grounds for public humiliation. Let me give you an example of the practice:

Defendant Mickey Mouse (“Mouse”) moves for summary judgment against Dwarf Doc (“Doc”), Dwarf Happy (“Happy”), Dwarf Sneezy (“Sneezy”), Dwarf Sleepy (“Sleepy”), Dwarf Bashful (“Bashful”), Dwarf Grumpy (“Grumpy”), and Dwarf Dopey (“Dopey”).

Figured out what it is? It’s telling your reader that you don’t believe she can figure out on her own that when you later write Mouse you are referring to Mickey Mouse. Why on earth would anyone clutter up their prose with this? In my example, there are eight extra words that do nothing to help advance the client’s case. In an age when word counts are enforced by some courts, the practice just eats into the words you could use to persuade the court.

Judges, I should note, are not immune from criticism here. How many appellate opinions begin with something like this:

Robert Smith (“Husband” or “Robert”) filed for dissolution of marriage against Alice Smith (“Wife” or “Alice”). In this appeal, Husband argues that the trial court erred in awarding custody of the parties’ child to Wife.

If there are only two parties to the case, why is it necessary to put names or labels in quotation marks? The following is just as clear yet lacks the clutter that can make the sentence harder to read.

Robert Smith filed for dissolution of marriage against Alice Smith. In this appeal, Robert argues that the trial court erred in awarding custody of the parties’ child to Alice.

When asked about this practice, many lawyers and judges will say that they simply want the reader to be clear about whom the writer is referring. This makes sense if there are a number of similarly-named parties and keeping them straight is important. But when parties have distinctive names, this justification fails. In many instances, lawyers do this probably because as young lawyers they saw others do it, and thought that this is the way lawyers should write.

Mule muffins! Lawyers should write with clarity and in English. We don’t see novelists starting off their works like this:

Call me Ishmael (“Ishmael”)…

This practice needs to be eliminated promptly, lest we lawyers be accused of charging our clients by the number of words in the document.

Keep in mind that this practice can be abandoned in transactional work as well. A contract that might begin like this:

Robert Jones (“Buyer”) agrees to purchase from Alice Doe (“Seller”)…

can be just as clearly written like this:

Robert Jones agrees to purchase from Alice Doe a certain 2013 Audi RS5 automobile. Buyer agrees to pay the sum of $100,000 to Seller…

Any reader with a modicum of sense and intelligence will be able to figure out on his own that Robert is the buyer and Alice is the seller. There’s no need to insult the reader’s intelligence by inserting the labels in parentheses and quotation marks.

How long have you been insulting your readers? How much longer will you keep doing it?

Let’s work on eliminating this junk from our language, one lawyer at a time. I pledge to not allow this stuff in any document that bears my name or my authorship. Who will be second to make the pledge? Who will be next after that?

Thoughts on ABA TECHSHOW 2013

Beautiful (but chilly) weather for TECHSHOW 2013

Where can you meet famous writers, podcasters, and listen to an Emmy winner sing “I’m on Twitter” (to the tune of “I Feel Pretty” from West Side Story) in the same hotel where Harrison Ford interrupted a physician’s speech in The Fugitive? If you were at the ABA’s TechShow 2013 in Chicago this past week, you know the answer. This was the first time I attended TechShow, and as I travel back home on the South Shore Railroad Friday evening my mind is still trying to process everything.

TechShow is broken into two main parts. The first are presentations from some of the real thought leaders in using technology in your law practice. The second is a sizable expo of vendors large, medium and small in size. There are also other components, but I really didn’t get a chance to partake of those. Had I done so, I think my mind would be even more boggled than it is now.

The networking opportunities are abundant, and I did not even scratch the surface. Part of it is that I can be a bit introverted in large gatherings. The other part is that I’m not really good at introducing myself to people in person when I really have not developed some kind of online connection with them. I felt OK saying hello to Ernie Svenson and Jeff Richardson from iPhone JD, but the only reason I introduced myself to David Sparks is because he all but insisted on his web site. I met a few other people that I will want to keep in touch with online (including Randy Juip, a guy who may be the coolest insurance defense attorney, despite his being a Univ. of Michigan fan). Next year I will hopefully feel a little more comfortable going up to people and socializing a bit more. I won’t call it a wasted opportunity, but I am sure many other first timers did better at the networking.

The expo is a great place to have your mind blown. I saw a lot of things that large firms would be likely to use, but not a huge number of things I would see our firm using. Perhaps we should, but I just don’t see it. I found some fascinating new ways to deal with depositions–specifically depositions. It was also cool to meet the great people behind TrialPad and TranscriptPad. Still, it’s good to see some of the types of things that are going on out there that are likely to be more mainstream in just a few years. The fact I was able to win a bottle of Silver Oak Cabernet Sauvignon was a real treat. (My wife and I drank it on Saturday evening. It was terrific.) There were plenty of other giveaways of iPad minis, other tablets, and accessories.

The presentations were, overall, very good to excellent. As one who is pretty tech savvy, some of the offerings were a bit basic for me, but others were quite useful and offered ideas to work on implementing. I think next year it would be wise for me to stay in Chicago so I can hit the last offerings of the day without worrying about catching my train to get back to South Bend at a reasonable hour. Doing so would also let me socialize a bit more with other attendees.

The keynote address was perhaps the best event. New York Times columnist David Pogue talked about how technology is disrupting our world. He did so in a very entertaining presentation with lots of humor. If you’ve ever seen one of his presentations on YouTube, you know what I am saying. The best part, though, wasn’t the humor or the musical portion. It was being shown the absolutely mind-blowing things that are being done with apps on our phones. Enhanced reality (like being able to point your iPhone’s camera at Spanish words and see the English translation–ON the same surface, in the same font, and with the same background, all in real time, was stunning. Another stunner was the app that let’s you point the camera at a building and see who inside the building is on Twitter *at that very moment.* (Employers are already looking this app up so they can see who is violating the company’s usage policies.)

Overall, I am glad I went, but wish I could have done more. The throngs of people behind TechShow are not to blame for that. I need a chance to get my sea legs before I can really take full advantage of the offerings. Assuming things work out for next year, you’ll see me there. (And if you remember me from this year, please say hello if you see me next year.)

Wait Time 30 Minutes From This Point

Visitors to Disney theme parks are familiar with the wait time signs posted outside many attractions. They are used by Disney to give guests an idea of how long the wait is for a particular attraction. One of the smart things Disney does is to overstate the wait times a little bit. If the wait time is running 25 minutes, they’ll adjust the sign to read 30 minutes. If the wait time is running 10 minutes, they’ll have the sign say 15 minutes.

Is Disney lying to its guests? Not really. Disney is setting an expectation for the guest that can be exceeded. We’ve all had the experience of waiting less time than we expected—at a restaurant, at the auto repair shop, in line at Disneyland. When the wait time is less than we expected, we immediately think “hey, that was pretty good and didn’t take as long as I thought it would.”

Overstating the wait times a little bit is a classic example of under-promising and over-delivering. This is an easy concept for lawyers to apply. If you think it will take you a week to get a project done for a client, tell the client you think it will be done in ten or fourteen days. When you get it done in eight, you look terrific and the client has had her expectations exceeded.

Walk a mile in their shoes

Lee Cockerell worked for Disney for many years as the executive vice president for operations at Walt Disney World. During his tenure, he helped develop a program for Disney managers designed to help them improve their work (and earn promotions). It was called “Performance Excellence” (not a very catchy title for a creative organization), and I had the opportunity to listen to some of Lee’s presentations given as part of that program.

One of the stories Lee told was about when he worked for Marriott and observed a bed sheet with a big iron burn mark on it that was about to go into a guest room. He stopped the housekeeper and told her to get rid of the sheet. He then took the opportunity to coach her and suggested she think about what the family staying in that room would think when they saw the burn mark on the sheet. Lee pointed out that the family would be disappointed when instead the housekeeper should want the family to be pleased with the work she did.

Lee told another story about an experience in a program at Disney that they call “Cross U.” In that program, managers and high level executives work a full shift on the front lines. They flip burgers, help people in and out of ride vehicles, and do all the other work. One year, Lee was assigned to make French fries. Lee acknowledged that this was not one of the more glamorous jobs at Disney World, but he thought about how he’d want the people who got his fries to react when they saw them. They could either think “wow, those fries look great” or they could think “those fries look pretty crummy.” Lee then made it a point to pay close attention to the cooking time so that every batch of fries was cooked perfectly.

In both of these stories, Lee asked the housekeeper and himself to stand in the shoes of the guest. The guest’s experience should always be top-notch, but managers won’t know if it is if they don’t walk in the guest’s shoes. Lee always encouraged managers to walk through the park like a guest—not coming in the back entrance, but getting in line in the main turnstiles or standing in line for an attraction.

When’s the last time you sat for a little while in your waiting room to see how your client sees it? Are the magazines current, or do you have year-old news magazines that look like they’ve seen better days? Have you called your main switchboard (perhaps using an unfamiliar phone number so no one knows it’s you) to find out what clients hear when they call? (Consider doing this when your primary person is on break and another staff member is filling in. Clients should have a consistent experience.)

Taking some time to view things from the client’s perspective is a wise move that is easy to do. Sadly, it’s often overlooked.

“Scotty, I need more power!”

Everyone who’s visited a Disney resort has either seen or heard of something like this. A child drops her box of popcorn all over the ground, and is obviously unhappy. A Cast Member sees this happen, goes over to the nearest popcorn cart, and returns to the unhappy child with a brand new popcorn box—all at no charge to the guest.

What can lawyers learn from this? Quite a few things.

First, Disney has trained all of its Cast Members to do what they can to make sure that no guest has a bad experience—even when it comes to something as small as a spilled popcorn box. For the guest on the receiving end, it feels like the Cast Member has gone above and beyond the call of duty, even though the Cast Member knows it’s not a difficult fix.

Second, Disney has trained its Cast Members that they have the authority to “spend Disney’s money” in order to make sure guests have a positive experience. A child whose snow globe might break could find a Cast Member giving her a new one (again, at no charge to the guest). Believe it or not, some guests at Disneyland spend all of their cash and realize that they don’t have money to pay for the cab fare home. The Disneyland guest relations staff is trained that they have the authority to provide cash to guests who are in dire straits. Disney obviously doesn’t advertise this fact, but they do it so that the guest has a positive experience.

Similarly, Disney doesn’t tell people that there are “rain checks” for when the weather is lousy, but if a guest asks about a refund because it started pouring, the Cast Member is authorized to give the guest a complimentary ticket.

In our law offices, support staff should be trained that they have the authority to do certain things for clients. Clients get frustrated when they call to ask for what seems like a simple request (like a copy of a letter that you sent out on their behalf last week) and hear from the staff that they’ll have to check with the attorney first. If this is happening in your office, you should make sure your staff knows what client requests really need to be run past you first and what requests can be fulfilled immediately.